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HOCKESON v. NEW YORK STATE OFFICE OF GENERAL SERVICES

February 21, 2002

CAROL HOCKESON PLAINTIFF,
V.
NEW YORK STATE OFFICE OF GENERAL SERVICES, NEW YORK STATE DEPARTMENT OF AUDIT & CONTROL, NEW YORK STATE DEPARTMENT OF CIVIL SERVICE, AND FRANK RYAN, DEFENDANTS.



The opinion of the court was delivered by: Honorable Lawrence E. Kahn, United States District Judge.

DECISION AND ORDER

Plaintiff commenced this action alleging sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), and New York's Human Rights Law, N.Y. Exec. Law §§ 296 and 297 ("HRL"). Defendants New York State Office of General Services ("OGS"), New York State Department of Audit and Control ("DAC"), and New York State Department of Civil Service ("DCS"), move to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(2), (5) and (6). Defendant Frank Ryan moves to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(6) and/or for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons stated herein, defendants DAC and DCS are dismissed from the instant action; defendant Ryan is dismissed from the instant action for lack of jurisdiction; and defendant OGS's Motion to Dismiss is granted in part and denied in part.
I. BACKGROUND
Beginning on August 5, 1999, Plaintiff was employed as a System Support Aide by the New York State Office of General Services. As a new employee, she was placed on probation for a period up to six months. Plaintiff's immediate supervisor was Alan Arnold. Plaintiff's office consisted of herself, six other employees (all men), her supervisor, Alan Arnold, and Arnold's supervisor, Marge Calyer (a woman). In her Complaint, Plaintiff alleges that she was subjected to harassment, a hostile work environment, discrimination on the basis of her national origin, retaliation, and constructive discharge.
The alleged discriminatory acts consist of: 1) a co-worker with a screensaver of a woman's breasts with cat's eyes in place of the nipples; 2) sexually explicit e-mails sent to her by another co-worker; 3) defendant Ryan's comment that "we're not used to having a woman around"; 4) when Plaintiff asked Ryan about problem solving techniques or solutions, he stated that she has to "sink or swim"; 5) defendant Ryan asked Plaintiff to place orders with computer parts suppliers; 6) defendant Ryan used the term "guinea-wop" which Plaintiff found offensive, being a woman of Italian descent (defendant Ryan later apologized for his remark); 7) when Plaintiff was seated at a vacant desk near the office door, defendant Ryan's statement that her next move would be out the door; 8) Plaintiff was not invited to a New Year's Party that most of the other office workers attended; 9) Plaintiff was placed on a second probationary period. Plaintiff alleges that these acts amount to discrimination, harassment and a hostile work environment. Furthermore, she claims these acts resulted in her constructive discharge "because she could not take it anymore."
II. DISCUSSION
A. Dismissal Standard of Review
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for "failure to state a claim upon which relief can be granted," must be denied "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); accord Hishon v. King & Spalding, 467 U.S. 69 (citing Conley and reversing dismissal for failing to state a claim of discrimination under Title VII of the Civil Rights Act of 1964). "The issue is not whether a plaintiff is likely to prevail ultimately, `but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)) (additional citation omitted). Courts apply this standard with even greater force where the complaint arises from alleged civil rights violations. See Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). In assessing the sufficiency of a pleading, "all factual allegations in the complaint must be taken as true," LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991) (citations omitted), and all reasonable inferences must be construed in favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also Bankers Trust Co. v. Rhoades, 859 F.2d 1096, 1099 (2d Cir. 1988) (applying the principle of construing inferences in favor of plaintiff). As the Second Circuit has stated, when determining the sufficiency of the claim for Rule 12(b)(6) purposes,
consideration is limited to the factual allegations in [the] complaint, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.

Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993).

A complaint should not be dismissed unless it appears that no construction of the facts would permit the plaintiff to prevail. See Hughes v. Rowe, 449 U.S. 5, 10 (1980); Bass v. Jackson, 790 F.2d 260, 262 (2d Cir. 1986). The Rules do not require the plaintiff to set out in detail the facts upon which the claim is based, but only that a defendant be given "fair notice of what the . . . claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Individual allegations, however, that are so baldly conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains are meaningless as a practical matter and, as a matter of law, insufficient to state a claim. Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987) (applying this standard to a complaint based upon civil rights statutes). As the party moving for dismissal, Defendant has the burden of proving, beyond doubt, that Plaintiff can prove no set of facts in support of her claim. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957). It is with this standard in mind that the Court addresses the issues presented.
B. Plaintiff's Claims
As a preliminary matter, Plaintiff withdraws all causes of action against defendants DAC and DCS. The present action is therefore dismissed against these two defendants. Plaintiff also withdraws her HRL cause of action against OGS. Plaintiff also withdraws her Title VII cause of action against defendant Ryan. Remaining in the instant action are Plaintiff's Title VII claim against defendant OGS, and her HRL claim against defendant Ryan.
Plaintiff alleges: 1) a hostile work environment; 2) sexual harassment; 3) discrimination based on national origin; 4) retaliation; and 5) constructive discharge, in violation of Title VII and New York's HRL. The courts have repeatedly noted that claims brought under New York State's HRL are analytically identical to claims brought under Title VII. See, ...

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